J-S62031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.M.M., II : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

APPEAL OF: A.G., FATHER : No. 663 MDA 2016

Appeal from the Decree March 29, 2016

In the Court of Common Pleas of Lancaster County

Orphans’ Court at No(s): 115 of 2016

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2016

Appellant, A.G. (“Father”), appeals from the decree entered in the 

Lancaster County Court of Common Pleas, which granted the petition of the 

Lancaster County Children & Youth Social Service Agency (“Agency”) for 

involuntary termination of Father’s parental rights to his minor child, J.M.M., 

II (“Child”). We affirm. 

The trial court opinion sets relevant facts and procedural history of this 

case are as follows: 

The [c]ourt first became involved with [J.M.M.] (Mother) 

and [A.G.] (Father), the parents of [Child], on August 20, 

2013, when the [Agency] received information that Mother 

had purposely overdosed on prescription medications and 

was found unresponsive.1 Father was in prison. After 

Mother was released from the hospital, a safety plan was 

established. Mother did not follow through with the plan 

and a Family Service Plan was put in place, but Mother 

also made little progress in complying with its goals. 

When the household’s electricity was turned off because of 

unpaid bills, the children were placed in foster care on May 

29, 2014. They were found to be dependent after [a] 
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hearing on June 16, 2014. Mother never completed her 

plan, [and] the Agency filed a petition to terminate her 

parental rights to her two children on January 15, 2016, 

and her [parental] rights were terminated by Decree on 

March 29, 2016. Mother did not appeal this decision. 

1 Mother is the parent of [E.M.], who had a different 

father other than J.M.M. II. The parental rights of 

[E.M.] are not included in this appeal. 

Father is incarcerated and has been so since 2010, a year 

after [Child’s] birth, pursuant to charges for aggravated 

assault, robbery with infliction or threat to cause bodily 

injury and forcible rape. His earliest release date is 2026 

[or 2027]. His only contact with [Child] is through the 

mail, and he writes approximately once a month or less. 

[Child] responds to his letters. Although Father in the past 

asked the Agency for updates concerning his son, he has 

not done so recently. The foster mother provides [Father] 

with pictures of [Child]. When Father was in a prior 

facility, he did have visits with [Child],[1] but since being in 

his current facility, he does not see [Child] at all; his last 

visit with [Child] was in 2014. He has not complied with 

the obligations of his Agency Plan, since the only resource 

the prison provides is a violence prevention program. 

Father testified he has a bond with [Child], but presented 

no evidence in support of that statement except his own 

belief.

[Child] has been in a pre-adoptive home since June 2, 

2014, with his half-sister, E.M. He is happy there. He is 

receiving outpatient therapy and occupational therapy. 

There are two older biological children in the home who 

get along well with [Child] and [E.M.]. 

A petition for termination of Father’s parental rights to 

[Child] was filed on January 15, 2016, and a hearing was 

scheduled for Monday, February 29, 2016. That hearing 

was continued to March 28, 2016 because of insufficient 

 

1 When father was incarcerated in Lancaster County prison, Mother brought 

Child to visit Father on a weekly basis. He continued to see Child on a more 

or less monthly basis when transferred to other prisons, until Mother lost 

custody of Child in 2014. 
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time to present the necessary testimony. During the 

truncated February 29th hearing, the [c]ourt agreed to 

incorporate the prior Juvenile Matter into the Orphans’ 

[c]ourt proceeding. After [a] hearing on March 28, 2016, 

the [c]ourt entered a decree on March 29, 2016, 

terminating Mother’s and Father’s parental rights to 

[Child]. 

(Trial Court Opinion, filed May 17, 2016, at 1-3) (internal citations to record 

omitted). On April 22, 2016, Father filed a notice of appeal and concise 

statement of errors complained of on appeal, per Pa.R.A.P. 1925(a)(2)(i). 

Mother did not file an appeal. 

Father raises the following issues:

WAS IT AN ABUSE OF DISCRETION TO GRANT THE 

AGENCY’S PETITION TO TERMINATE WHERE FATHER, 

ALTHOUGH FACING A LENGTHY SENTENCE, 

CORRESPONDED WITH HIS CHILD ON A MONTHLY BASIS, 

HAD VISITS WITH HIM ON A REGULAR BASIS UNTIL 

STOPPED BY THE AGENCY ONCE THE CHILD WAS IN ITS 

CUSTODY, ATTEMPTED TELEPHONE CONTACT WITH HIS 

CHILD AND RECEIVED UPDATES AND PICTURES FROM THE 

RESOURCE FAMILY?

DID THE AGENCY MEET ITS BURDEN OF INTRODUCING 

SUFFICIENT EVIDENCE THAT TERMINATION OF PARENTAL 

RIGHTS IS IN THE CHILD’S BEST INTEREST? 

(Father’s Brief at 7). 

Appellate review in termination of parental rights cases implicates the 

following principles: 

In cases involving termination of parental rights: “our 

standard of review is limited to determining whether the 

order of the trial court is supported by competent 

evidence, and whether the trial court gave adequate 

consideration to the effect of such a decree on the welfare 

of the child.” 
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In re Z.P., 994 A.2d 1108, 1115 (Pa.Super. 2010) (quoting In re I.J., 972 

A.2d 5, 8 (Pa.Super. 2009)). 

Absent an abuse of discretion, an error of law, or 

insufficient evidentiary support for the trial court’s 

decision, the decree must stand. ... We must 

employ a broad, comprehensive review of the record 

in order to determine whether the trial court’s 

decision is supported by competent evidence. 

In re B.L.W., 843 A.2d 380, 383 (Pa.Super. 2004) (en 

banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004) 

(internal citations omitted). 

Furthermore, we note that the trial court, as the 

finder of fact, is the sole determiner of the credibility 

of witnesses and all conflicts in testimony are to be 

resolved by [the] finder of fact. The burden of proof 

is on the party seeking termination to establish by 

clear and convincing evidence the existence of 

grounds for doing so. 

In re Adoption of A.C.H., 803 A.2d 224, 228 (Pa.Super. 

2002) (internal citations and quotation marks omitted). 

The standard of clear and convincing evidence means 

testimony that is so clear, direct, weighty, and convincing 

as to enable the trier of fact to come to a clear conviction, 

without hesitation, of the truth of the precise facts in issue. 

In re J.D.W.M., 810 A.2d 688, 690 (Pa.Super. 2002). We 

may uphold a termination decision if any proper basis 

exists for the result reached. In re C.S., 761 A.2d 1197, 

1201 (Pa.Super. 2000) (en banc). If the court’s findings 

are supported by competent evidence, we must affirm the 

court’s decision, even if the record could support an 

opposite result. In re R.L.T.M., 860 A.2d 190, 191[-92] 

(Pa.Super. 2004). 

In re Z.P., supra at 1115-16 (quoting In re Adoption of K.J., 936 A.2d 

1128, 1131-32 (Pa.Super. 2007), appeal denied, 597 Pa. 718, 951 A.2d 

1165 (2008)). 
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The Agency sought involuntary termination of Father’s parental rights 

on the following grounds:

§ 2511. Grounds for involuntary termination

(a) General Rule.―The rights of a parent in regard to a 

child may be terminated after a petition filed on any of the 

following grounds:

(1) The parent by conduct continuing for a period of 

at least six months immediately preceding the filing 

of the petition either has evidenced a settled purpose 

of relinquishing parental claim to a child or has 

refused or failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, 

neglect or refusal of the parent has caused the child 

to be without essential parental care, control or 

subsistence necessary for [her] physical or mental 

well-being and the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will 

not be remedied by the parent.

* * *

(5) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 

with an agency for a period of at least six months, 

the conditions which led to the removal or placement 

of the child continue to exist, the parent cannot or 

will not remedy those conditions within a reasonable 

period of time, the services or assistance reasonably 

available to the parent are not likely to remedy the 

conditions which led to the removal or placement of 

the child within a reasonable period of time and 

termination of the parental rights would best serve 

the needs and welfare of the child.

* * *

(8) The child has been removed from the care of the 

parent by the court or under a voluntary agreement 

with an agency, 12 months or more have elapsed 
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from the date of removal or placement, the 

conditions which led to the removal or placement of 

the child continue to exist and termination of 

parental rights would best serve the needs and 

welfare of the child.

* * *

(b) Other considerations.―The court in terminating 

the rights of a parent shall give primary consideration to 

the developmental, physical and emotional needs and 

welfare of the child. The rights of a parent shall not be 

terminated solely on the basis of environmental factors 

such as inadequate housing, furnishings, income, clothing 

and medical care if found to be beyond the control of the 

parent. With respect to any petition filed pursuant to 

subsection (a)(1), (6) or (8), the court shall not consider 

any efforts by the parent to remedy the conditions 

described therein which are first initiated subsequent to 

the giving of notice of the filing of the petition.

23 Pa.C.S.A. § 2511(a)(1), (2), (5), (8), and (b). “Parental rights may be 

involuntarily terminated where any one subsection of Section 2511(a) is 

satisfied, along with consideration of the subsection 2511(b) provisions.” In 

re Z.P., supra at 1117. 

Initially, the focus is on the conduct of the parent. The 

party seeking termination must prove by clear and 

convincing evidence that the parent’s conduct satisfies the 

statutory grounds for termination delineated in Section 

2511(a). Only if the court determines that the parent’s 

conduct warrants termination of his...parental rights does 

the court engage in the second part of the analysis 

pursuant to Section 2511(b): determination of the needs 

and welfare of the child under the standard of best 

interests of the child. 

In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (internal citations omitted). 

Termination under Section 2511(a)(1) involves the following:
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To satisfy the requirements of [S]ection 2511(a)(1), the 

moving party must produce clear and convincing evidence 

of conduct, sustained for at least the six months prior to 

the filing of the termination petition, which reveals a 

settled intent to relinquish parental claim to a child or a 

refusal or failure to perform parental duties. In addition,

Section 2511 does not require that the parent 

demonstrate both a settled purpose of relinquishing 

parental claim to a child and refusal or failure to 

perform parental duties. Accordingly, parental rights 

may be terminated pursuant to Section 2511(a)(1) if 

the parent either demonstrates a settled purpose of 

relinquishing parental claim to a child or fails to 

perform parental duties. 

Once the evidence establishes a failure to perform parental 

duties or a settled purpose of relinquishing parental rights, 

the court must engage in three lines of inquiry: (1) the 

parent’s explanation for his...conduct; (2) the postabandonment contact between parent and child; and (3) 

consideration of the effect of termination of parental rights 

on the child pursuant to Section 2511(b). 

In re Z.S.W., 946 A.2d 726, 730 (Pa.Super. 2008) (internal citations 

omitted) (emphasis added). Regarding the six-month period prior to filing 

the termination petition:

[T]he trial court must consider the whole history of a given 

case and not mechanically apply the six-month statutory 

provision. The court must examine the individual 

circumstances of each case and consider all explanations 

offered by the parent facing termination of his...parental 

rights, to determine if the evidence, in light of the totality 

of the circumstances, clearly warrants the involuntary 

termination. 

In re B.,N.M., 856 A.2d 847, 855 (Pa.Super. 2004), appeal denied, 582 Pa. 

718, 872 A.2d 1200 (2005). 

The grounds for termination of parental rights under Section 
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2511(a)(2), due to parental incapacity that cannot be remedied, are not 

limited to affirmative misconduct; to the contrary, those grounds may 

include acts of refusal as well as incapacity to perform parental duties. In 

re A.L.D., 797 A.2d 326 (Pa.Super. 2002). “Parents are required to make 

diligent efforts towards the reasonably prompt assumption of full parental 

responsibilities.” Id. at 340. The fundamental test in termination of 

parental rights under Section 2511(a)(2) was long ago stated in the case of 

In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975), where the Pennsylvania 

Supreme Court announced that under what is now Section 2511(a)(2), “the 

petitioner for involuntary termination must prove (1) repeated and continued 

incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, 

neglect or refusal caused the child to be without essential parental care, 

control or subsistence; and (3) that the causes of the incapacity, abuse, 

neglect or refusal cannot or will not be remedied.” In Interest of Lilley, 

719 A.2d 327, 330 (Pa.Super. 1998). 

Our Supreme Court addressed the relevance of incarceration in 

termination decisions under Section 2511(a)(2), holding: 

[W]e now adopt the view...that incarceration neither 

compels nor precludes termination. Instead, we hold that 

incarceration is a factor, and indeed can be a 

determinative factor, in a court’s conclusion that grounds 

for termination exist under [Section] 2511(a)(2) where the 

repeated and continued incapacity of a parent due to 

incarceration has caused the child to be without essential 

parental care, control or subsistence and that the causes of

the incapacity cannot or will not be remedied. 
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* * *

In line with the expressed opinion of a majority of justices 

in [In re R.I.S. & A.I.S., 614 Pa. 275, 36 A.3d 567 

(2011)], our prior holdings regarding incapacity, and 

numerous Superior Court decisions, we now definitively 

hold that incarceration, while not a litmus test for 

termination, can be determinative of the question of 

whether a parent is incapable of providing “essential 

parental care, control or subsistence” and the length of the 

remaining confinement can be considered as highly 

relevant to whether “the conditions and causes of the 

incapacity, abuse, neglect or refusal cannot or will not be 

remedied by the parent,” sufficient to provide grounds for 

termination pursuant to 23 Pa.C.S. § 2511(a)(2). ... If a 

court finds grounds for termination under subsection 

(a)(2), a court must determine whether termination is in 

the best interests of the child, considering the 

developmental, physical, and emotional needs and welfare 

of the child pursuant to [Section] 2511(b). In this regard, 

trial courts must carefully review the individual 

circumstances for every child to determine, inter alia, how 

a parent’s incarceration will factor into an assessment of 

the child’s best interest. 

In re Adoption of S.P., 616 Pa. 309, 328-31, 47 A.3d 817, 828 (2012).2 

Under Section 2511(b), the court must consider whether termination 

will meet the child’s needs and welfare. In re C.P., 901 A.2d 516, 520 

 

2

“Termination of parental rights under Section 2511(a)(5) requires that: (1) 

the child has been removed from parental care for at least six months; (2) 

the conditions which led to removal and placement of the child continue to 

exist; and (3) termination of parental rights would best serve the needs and 

welfare of the child.” In re Z.P., supra at 1118. “[T]o terminate parental 

rights under Section 2511(a)(8), the following factors must be 

demonstrated: (1) the child has been removed from parental care for 

[twelve] months or more from the date of removal; (2) the conditions which 

led to the removal or placement of the child continue to exist; and (3) 

termination of parental rights would best serve the needs and welfare of the 

child.” In re Adoption of M.E.P., 825 A.2d 1266, 1275-76 (Pa.Super. 

2003). Due to our disposition under other subsections of Section 2511, we 

will not address the applicability of subsections (a)(5) or (a)(8). 
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(Pa.Super. 2006). “Intangibles such as love, comfort, security, and stability 

are involved when inquiring about the needs and welfare of the child. The 

court must also discern the nature and status of the parent-child bond, 

paying close attention to the effect on the child of permanently severing the 

bond.” Id. at 520. Significantly:

In this context, the court must take into account whether a 

bond exists between child and parent, and whether 

termination would destroy an existing, necessary and 

beneficial relationship. When conducting a bonding 

analysis, the court is not required to use expert testimony. 

Social workers and caseworkers can offer evaluations as 

well. Additionally, Section 2511(b) does not require a 

formal bonding evaluation.

In re Z.P., supra at 1121 (internal citations omitted).

“The statute permitting the termination of parental rights outlines 

certain irreducible minimum requirements of care that parents must provide 

for their children, and a parent who cannot or will not meet the requirements 

within a reasonable time following intervention by the state, may properly be 

considered unfit and have his...parental rights terminated.” In re B.L.L., 

787 A.2d 1007, 1013 (Pa.Super. 2001). This Court has said:

There is no simple or easy definition of parental 

duties. Parental duty is best understood in relation 

to the needs of a child. A child needs love, 

protection, guidance, and support. These needs, 

physical and emotional, cannot be met by a merely 

passive interest in the development of the child. 

Thus, this court has held that the parental obligation 

is a positive duty which requires affirmative 

performance. 

This affirmative duty encompasses more than a 
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financial obligation; it requires continuing interest in 

the child and a genuine effort to maintain 

communication and association with the child. 

Because a child needs more than a benefactor, 

parental duty requires that a parent exert himself to 

take and maintain a place of importance in the 

child’s life. 

Parental duty requires that the parent act affirmatively 

with good faith interest and effort, and not yield to every 

problem, in order to maintain the parent-child relationship 

to the best of his...ability, even in difficult circumstances. 

A parent must utilize all available resources to preserve 

the parental relationship, and must exercise reasonable 

firmness in resisting obstacles placed in the path of 

maintaining the parent-child relationship. Parental rights 

are not preserved by waiting for a more suitable or 

convenient time to perform one’s parental responsibilities 

while others provide the child with [his] physical and 

emotional needs. 

In re B.,N.M., supra at 855 (internal citations omitted). “[A] parent’s basic 

constitutional right to the custody and rearing of his...child is converted, 

upon the failure to fulfill his...parental duties, to the child’s right to have 

proper parenting and fulfillment of his...potential in a permanent, healthy, 

safe environment.” Id. at 856. 

“While a parent’s emotional bond with his...child is a major aspect of 

the subsection 2511(b) best-interest analysis, it is nonetheless only one of 

many factors to be considered by the court when determining what is in the 

best interest of the child.” In re N.A.M., 33 A.3d 95, 104 (Pa.Super. 2011). 

“The mere existence of an emotional bond does not preclude the termination 

of parental rights.” Id. Rather, the court “must examine the status of the 
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bond to determine whether its termination would destroy an existing, 

necessary and beneficial relationship.” Id. (internal citations and quotation 

marks omitted). “Above all else[,] adequate consideration must be given to 

the needs and welfare of the child. A parent’s own feelings of love and 

affection for a child, alone, do not prevent termination of parental rights.” 

In re Z.P., supra at 1121. 

Importantly, “this Court has recognized a connection between the 

involuntary termination of parental rights and the Adoption and Safe 

Families Act (“ASFA”)...” In re R.M.G., 997 A.2d 339, 349 (Pa.Super. 

2010), appeal denied, 608 Pa. 648, 12 A.3d 372 (2010). The stated policy 

of the ASFA is:

[T]o remove children from foster placement limbo 

where they know neither a committed parent nor can 

[they] look toward some semblance of a normal 

family life that is legally and emotionally equivalent 

to a natural family.... States such as Pennsylvania, 

which participate in the program, are required to 

return the child to its home following foster 

placement, but failing to accomplish this due to the 

failure of the parent to benefit by such reasonable 

efforts, to move toward termination of parental 

rights and placement of the child through adoption. 

Foster home drift, one of the major failures of the 

child welfare system, was addressed by the federal 

government by a commitment to permanency 

planning, and mandated by the law of Pennsylvania 

in its participation in the Adoption and Safe Families 

Act of 1997. Succinctly, this means that when a 

child is placed in foster care, after reasonable efforts 

have been made to reestablish the biological 

relationship, the needs and welfare of the child 

require [the Agency] and foster care institutions to 

work toward termination of parental rights, placing 
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the child with adoptive parents. It is contemplated 

this process realistically should be completed 

within 18 months.

Essentially, this legislation shifted away from an 

inappropriate focus on protecting the rights of parents to 

the priority of the safety, permanency and well-being of 

the child. While this 18-month time frame may in some 

circumstances seem short, it is based on the policy that a 

child’s life simply cannot be put on hold in the hope that 

the parent will summon the ability to handle the 

responsibilities of parenting. 

Id. (internal citations and quotation marks omitted) (emphasis in original). 

Instantly, in response to Father’s claims, the Orphans’ court first 

translated Father’s issue as: “Whether the parental rights of a father should 

be terminated when the parent was imprisoned in 2010 for violent crimes 

when his son was one year old, when he will be in prison until at least 2026, 

when he has seen his son since 2010 only at prison visits which ended in 

2014, but has taken no official action to reactivate those visits, when he 

writes to his son less than once a month, and when he will need extensive 

work on his reunification plan upon release[?]” (See Trial Court Opinion at 

3.) Further, the court reasoned: 

The record shows that Father has written to [Child] less 

than once a month. Fewer than 12 letters a year is just 

not enough to show Father’s sincere desire to form a bond. 

And it is certainly an insufficient reason to deprive [Child] 

of the security of the close and present love and care of his 

foster parents. When his visits with [Child] were stopped, 

Father complained to the Agency but did not formally ask 

the [c]ourt to intervene. Father has not taken sufficient 

action to remedy the conditions which rendered [Child] a 

dependent child. 
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The [c]ourt finds that the Agency has met its burden to 

terminate Father’s parental rights under the standards set 

out in Sections 2511(a)(1), (2).... Father has been in 

prison since [Child] was one year old. [Father] has not 

taken sufficient action to maintain a parental role with his 

child. He has not completed any aspect of his reunification 

plan. At his father’s release date, [Child] will be almost 

18. Even if his rights had not been terminated, Father 

would be a parent in name only, since he is not in a 

position to adopt a personal parental role with his son. 

The [c]ourt realizes that Father has no choice in this 

matter since he will be in jail until 2026, but his lack of 

choice does not grant him a reprieve from a termination. 

His reality is that he is not now and will not in the near 

future be in a position to care for [Child].

* * *

The [c]ourt not only disagrees with, but is mystified by, 

Father’s position in favor of maintaining his parental rights. 

In what way is seven-year-old [Child’s] best interest 

served by being turned into a foster child with no hope of 

meaningful contact whatsoever with his biological parent 

for a period of sixteen years? Do fewer than twelve letters 

a year successfully substitute for [regular displays of love 

and affection]? Of course not. But that is what Father 

wants for [Child]. Father wants to retain his status as a 

parent while leaving [Child] essentially parentless. 

Father asserts that despite the separation, he has a 

meaningful bond with [Child], but the [c]ourt does not 

accept that assertion as true. Father had some visits with 

[Child] at his previous prison setting, but those visits 

ended in 2014, when [Child] was five, and Father did not 

fight for their resumption. At [seven] years of age, [Child] 

certainly knows Father, but recognition does not equal an 

emotional bond. As the Superior Court has said: 

... Being Uncle Daddy is not enough. Being a parent 

means assuming responsibility so that a real bond 

develops, not just a casual relationship.

The Superior Court has also eloquently commented on the 

type of situation in which a parent fights to maintain 
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his...rights, thereby condemning the child to the limbo of 

unending foster care. ... 

What [the parent] attempts to preserve is [his] 

sense of worth by holding onto the illusion of 

[fatherhood]. In doing so, [he] would deny [his 

child], in name only, the right to be totally 

assimilated into the only family [the child] has 

known. The price [the child] would pay is too high to 

satisfy [the parent’s need]. Sometimes the greatest 

act of love a parent can express is to let the child go. 

... 

And such is the case for [Child]. Because of the length of 

Father’s sentence and his inability to maintain a parental 

bond with [Child] it is impossible for [Father] to provide 

[Child] with the love, security and stability that [Child] 

deserves in his life. 

(Id. at 5-7). The record supports the court’s termination decision under 

Section 2511(a)(1), (a)(2) and (b), based on parental incapacity and the 

best interests of Child. See In re Z.P., supra. Therefore, we have no need 

to disturb it. Based upon the foregoing, we affirm the decree terminating 

Father’s parental rights to Child. 

Decree affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2016